(The Root) — Imagine being subject to a separate law because of your ethnic group. Imagine having no choice over who your leaders are. Imagine not being allowed to have a lawyer at a legal hearing. Imagine being told that your case can't be heard because you're a woman and your victory would "make women disrespectful" to their husbands. Imagine being sentenced to forced labor. And imagine that you can't opt out of this system.
Apartheid tumbled in South Africa in 1994. But if the proposed Traditional Courts Bill (pdf) makes its way into South African law, the above may become a reality for an estimated 17 million South Africans — all of them black, most of them poor and living in rural areas formerly defined as "homelands" for black South Africans under apartheid.
The bill has been bouncing around since 2008 and is now wrapping up hearings at the provincial level, where chiefs who stand to gain status and power have been enthusiastic supporters. It is expected to gain approval from the council of provinces; from there it will go to the National Assembly for a vote.
The bill is a reprise of the Black Administration Act 38 of 1927 (pdf), which put black South Africans under the rule of traditional leaders established by proclamation, not parliament. That law was part of a parcel of hateful apartheid-era legislation that made blacks second-class citizens in their own country.
The proposal says the new bill is intended to prevent conflict and maintain harmony in communities through traditional courts that can hear civil and criminal cases. There is some merit there: South African courts are overburdened and this bill would allow the government to unload some of its caseload. The traditional courts should provide quicker resolutions and should respect local customs. And from a policing standpoint, community disapproval can be a strong deterrent to crime — except when it strays into vigilantism, as it has all too often in South Africa's slums. In fact, the disturbing trend of vigilantism has been blamed by at least one think tank on the homeland system.
Critics including the Democratic Alliance Party claim the bill will also trample the constitutional rights many South Africans fought so hard to gain. "It's essentially authoritarian rule by traditional leaders," Sindiso Mnisi Weeks, a senior researcher at the Law, Race and Gender Research Unit of the University of Cape Town, told The Root. The LRG has produced an informative video detailing the issues of the bill. "You talk to older people as well and they say, 'This is not our culture, this is apartheid.' People say, 'How can our government do this to us?' "
Furthermore, Mnisi Weeks says, the bill gives the chief sole discretion to decide what is customary. "In this case you're talking about an individual who's given the power; the law is not written down anywhere and no one can contradict him," she said. "There's no accountability." The bill also allows traditional leaders to sentence people to a range of punishments including forced labor and confiscation of land.
And although the text provides for women and men to participate equally, critics ssay that is not the reality. That became clear to Mpumalanga resident Paulinah Sithole when she sought a court hearing over a dispute with her longtime partner. "They said I would make women disrespectful if they allowed me to win my case," she told Johannesburg's City Press newspaper. "They said I would make women stand up for their rights and then they will be disrespectful to their husbands." She concluded: "This is what happens to women who are under the chiefs. We stay under. Forever."
Who, then, supports this bill?
At a recent hearing in the Eastern Cape, City Press reported that one traditional leader rose to its defense. "When something is supported by me it is supported by everyone … I am in full support of this bill and so are all those under me," said Buyelekhaya Dalindyebo, king of the AbaThembu. "As for those who do not support this bill, they surely then fall under the other chiefs and not me."
Dalindyebo, 48, is known as a commanding leader who strikes fear in his "subjects." He is appealing a 15-year jail sentence stemming from acts of murder, kidnapping, arson and other charges, dating back to the mid-'90s when local residents claimed he used violent force to dole out justice. One case involved a man’s house being burned down for failing to pay a fine for a wandering goat.
After Dalindyebo spoke, the hearing chairperson ended the meeting. "Since the chief has spoken we will now have all submissions in writing," he said. "We cannot carry on after him as this would be disrespectful."
And therein lies a clue to why the government is pushing this bill. The ruling African National Congress is facing a critical party convention in December in which they'll chose their leader for the 2014 election. The ANC has swept every major election since 1994; whomever they choose will be heir apparent to the presidency. And for the ANC, these local chiefs are the kingmakers.
"Most people give a political explanation — the same reason the communal land rights bill was passed around election time," Mnisi Weeks said. "The ANC believes that traditional leaders bring the rural vote."
Former President F.W. de Klerk — South Africa's last apartheid leader, who won the Nobel Peace Prize jointly with Nelson Mandela in 1993 — also recently appeared to defend the homeland system in an interview with CNN.
He said: "They were not disenfranchised; they voted. They were not put in homelands; the homelands were historically there. If only the developed world would put so much money into Africa, which is struggling with poverty, as we poured into those homelands. How many universities were built? How many schools?"
De Klerk did not mention that the laws governing homelands also required black South Africans to carry pass books, which severely limited their movements. He also did not mention the Sharpeville Massacre of 1960, in which 69 people were killed in protest against the hateful law.
But some remember those trappings of apartheid, and say this bill will take them right back. In a 2008 petition, Charlotte Mokgosi of the Makgobistad area wrote (pdf): "The bill comes across as a real shame to the progress we thought we've made as South Africans. With bills like these, we are not sure anymore what trails do we hope to leave for our children."
A. Hawes has lived and worked in Africa for more than five years, covering a range of stories and conflicts.